The many stages in your family law matter

A number of clients start off their initial appointment with me saying something like:

“I definitely don’t want this to end up in Court.”

And what I like to impress upon them is this:

“Keeping your matter out of Court is absolutely our objective. The optimum outcome is when parties resolve their dispute without going to Court.”

About ninety-five per cent (95%) of all family law matters settle. That number of settlements includes matters settling at different stages of the case including, sometimes, after court proceedings have commenced. Sometimes, matters settle “at the steps of the Court” on the day of the final hearing

Going to Court /why parties commence Court proceedings?

There are many reasons why parties commence Court proceedings. Normally, parties do so reluctantly when other methods to resolve a dispute have failed. Sometimes, parties commence proceedings as a strategic move to force the other party to end the dispute. In our experience the most common reasons why our clients decide to commence proceedings are:

The other party is refusing to engage in negotiations, for example, ignoring correspondence, failing to respond to requests for disclosure, failing to engage a solicitor;

Where mediation/counselling has been attempted and was unsuccessful, with limited signs of ability to resolve any practical issues;

Due to urgency, for example, relocation or removal of children, in circumstances of dire financial hardship and property matters and so-on.

The Different Stages in a Family Law Matter

The initial appointment

At the initial appointment, normally we obtain detailed instructions about our client’s case. That means: obtaining details about the facts, about the history of the marriage, the parties and the children. At the same time, we will:

Provide detailed advice about the law;

Provide detailed advice about the client’s prospects;

Ascertain the client’s wishes and expectations;

To the extent that the client’s expectations and wishes do not appear to correlate with his/her prospects, we will provide information and advice about whether we consider that it is prudent to pursue the client’s expected outcome;

Provide information about the large range of Alternative Dispute Resolution (ADR) options available to parties to resolve their family law dispute via mediation/counselling (see below);

Advice about tactical and strategic considerations.

Communicating with the other party (The “Discovery Process”)

Parties involved in a family law dispute are required under the Family Law Act 1974 and the Family La Rules 2004 to make full and frank disclosure to each other about all the facts and all the documentation which is relevant to the dispute.The discovery process is normally also an important precursor to resolving a family law dispute via mediation/counselling. The parties may then be able to make informed decisions about their case.

Informal mediation/counselling without going to Court

The extent to which the discovery process is required will depend on the circumstances of each case. Sometimes, it may be possible for a dispute to be resolved through nothing more than the exchange of a handful of letters between the parties’ solicitors.At other times, it may be necessary for the parties and/or their solicitors to engage in some form of ADR process. There are various ways that parties may resolve a dispute via ADR after they have received comprehensive legal advice about their case:

The parties may engage a mediator to assist them to mediate their dispute and attend mediation session(s) with the solicitors;

The parties may engage a mediator and attend mediation without the solicitors;

The parties may meet with their solicitors without a mediator (“four-way meeting);

The parties may be able to resolve their dispute by direct discussion around the kitchen table.

Formalising an agreement legally without commencing Court proceedings

If a settlement is achieved, normally it should be formalised legally by entering into consent orders which may be filed with the Court. In property matters, it is essential to formalise the agreement legally in order to end the party’s financial relationship between them. Read more …

In regard to children’s matters, it is recommended that the parties also formalise a settlement legally with either consent orders or a “Parenting Plan” Read more …

Children’s Dispute and the Obligation to attempt Mediation/counselling

With children’s disputes, parties are required to attempt mediation/counselling. They are not entitled to commence Court proceedings unless and until they attempted mediation and obtained a certificate (a “section 60I Certificate”) from a registered family consultant to the effect that mediation, or the attempt to arrange mediation, failed.

Initiating proceedings in Court

A party will need to file an Initiating Application and an Affidavit in support. The affidavit is the party’s story that tells the Court about the party, the party’s life life and why it is that the party is going before the Court and what the applicant would like the Court to do.

In a parenting matter, a Notice of Risk must also be filed. In a property matter a Financial Statement must also be filed.

Once the documents are filed, there are clear “Court Events” within the life of a family law matter. We proceed to describe below the various Court Events.

In the first sentence, a Registrar will review the documents before he/she allocates a “First Return Date.” The Registrar will decide how urgent the matter is. This will affect how soon the matter is listed. Regrettably, given the volume of matters currently in the family law system, our experience is that if a matter is not considered urgent it may be several months before the matter is first listed in the Duty List

Court Event No 1 - The First Return Date

Normally, the First Return Date for the matter is in one of tries Judge’s Duty List. A Duty List is normally made up of various matters in the same situation. On that day, the Court will normally make directions:

In property matters, requiring the parties to attend compulsory mediation and making directions for the exchange of information den documentation in preparation for the mediation session;

In children’s matters, requiring the parties to attend compulsory counselling with a counsellor from the Counselling Section of the Court

If there are urgent matters to be considered, the Court will allocate time that day (or maybe sometime that week or another day) to hear the interim urgent matters. After reading the parties’ documents and hearing submissions form the parties’ solicitors, the Judge will make interim orders which may include, orders, for example:

That a parent spend time with a child;

For spousal maintenance;

To restrain a party from selling matrimonial assets;

Requiring a party to provide information/documentation to the other party

Granting exclusive occupation to one of the parties to the former matrimonial home.

Court Event No. 2 (in Property Matters) the “Conciliation Conference”

The Judge will ordinarily require parties to attend mediation to be presided by a Registrar of the Court or, alternatively, private mediation.

In our experience, many property matters settle at this stage. It is normally, the last opportunity when the parties and their solicitors are present to attempt to resolve the matter for once and for all

Court Event No. 2 (in Children’s matters) / “Counselling”

In disputes involving children, the Judge may order that the parties attend a child inclusive conference with one of the Counsellors from the Counselling Section of the Court. The purpose of the Conference is for the parties to resolve the dispute and, if this fails, to write a short report to the Court with comments and recommendations.

The matter will then return to the Judge and the Judge may interim orders assisted by the short report.

After Court Event No. 2

The Court will usually adjourn the matter for some weeks or months to allow the parties to resolve their dispute via mediation/counselling.

Sometimes, matters may go through a series of interim hearings before a final hearing is allocated as the parties are unable to co-operate in any way regarding interim issues that may come up. Numerous interim hearing increase the legal costs to the parties exponentially and, ideally, they should be avoided.

Court Event No. 3/ Directions Hearing

Ultimately, if the parties are unable to resolve their matter at the compulsory mediation/counselling stages, then the Court will lust the Matter for a Directions Hearing when it will be set down for a trial or “Final Hearing”.

Court Event No. 4 / the Final Hearing

Normally, the length of time between the filing of an Initiating Application and the date of a final hearing in the Canberra Registry is over twelve months.

One or several days may be allocated for the Final Hearing depending of the complexity of the matter.

We welcome you enquires with our Family Law Team. We are committed to resolving your matter at the earliest stage possible in your Family Law dispute. We will work with you to develop solutions to your problem, and do our utmost to ensure that we do so in a timely and cost effective manner.

We aim to resolve your matter amicably and through alternative dispute resolution, without the need to resort to costly and time consuming litigation. In the event that we do need to engage in litigation for you, we are experienced and well equipped to defend your interests and progress your matter successfully through the Court system.